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Lecture and Reading summary - International Law and Human Rights - 2024 - Grade 9
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Notes – International Law and Human Rights 2024Lecture 01: 02/04/2024
International law and the study of politics
Law (municipal/ domestic law)
- Perspectives:
- A set of rules
- Individuals must comply.
- A professional practice
- An independent social phenomenon
- An epiphenomenal (reflection, embodiment) of power
- Law does not matter independent from power.
International law
- International law is the body of rules that states consider binding in their mutual relations.
- The definition is highly contested and nearly every word in this definition can be questioned.
- Compared to municipal law, international law has three distinctive features.
- As a result, many lawyers have traditionally rejected the idea that international law is really law.
- Distinctive features:
- Internatinoal law is based on voluntary adhesions (in most cases).
- Weak or no enforcement mechanism (although increasing legalisation).
- Self-help system: countries must enforce the laws themselves.
- Rules are few and vague.
- Most publications are secondary literature.
- Academic views:
- John Austin:
- If law is sovereign command backed by the threat of sanctions, international law is
probably not law.
- Hart:
- If law is about a rule identifying which rules are law, international law can be law.
- Rule of recognition telling us if law is law.
- International relations view on international law:
- Hard law:
- Law as traditionally understood by most people.
- Usually in the form of legally binding treaties.
- Soft law:
- A variety of non-binding normatively worded instruments used in contemporary
international relations by states and international organisations.
- UNGA resolutions, etc.
- Most lawyers do not accept the conceptualisation of soft law as they think that this takes
away the distinctiveness of international law.
,Notes – International Law and Human Rights 2024
The study of politics and international law
- International relations had a strong legalist bend.
- How can we stop another war from happening again (after WW1)?
- International law was viewed as a key to securing world peace (League of Nations).
- However, there has been a disillusionment because of the second World War.
- Morgenthau (lawyer turned IR scholar):
- There can be no more primitive and no weaker system of law enforcement than international law.
- The enforcement of these laws depends on the biggest powers.
- Henkin:
- It is probably the case that almost all nations observe almost all principles of international law
and almost all of their obligations almost all of the time.
- What matters: when law is observed or when law is broken?
- After WW2:
- International lawyers:
- Emphasised international law’s separation from politics.
- Focused on studying specific legal rules and decision-making processes.
- International relations:
- Ignored international law.
- Spoke of regimes, norms, and institutions and not of law.
- Paradoxically, just as international law’s prestige among IR scholars was at its lowest when international
law underwent an explosive growth.
- Key international institutions, treaties, and regimes were born after WW2.
- However, IR scholars argued that the new hegemons (USA, USSR) created new institutions to
entrench their power.
- Mostly power matters.
- 1980s:
- The win of the USA of the Cold War created most of the international institutions.
- Since the end of the Cold War, there has been a partial rapprochement between international law
and international relations.
- Mostly because of constructivism.
- But the study of international law qua politics still takes a distinct approach from the study of
international law qua law.
,Notes – International Law and Human Rights 2024
Simmons: International Law and International Relations
- International law is the set of rules that are intended to bind states in their relationships with each other.
- International law is largely designed to apply to states, both to constrain (the laws of war) and to
empower them (law of sovereignty).
- Increasingly, international law has been codified, so that today most international obligations are
contained in treaty form, although historically customary international law played a relatively
more important role than it does today.
- The influence of international law
- Implementation
- Implementation is usually understood as the integration of international rules into
domestic law and institutions.
- Implementation is shaped by the nature and activities of domestic political and legal
institutions.
- Different legal systems absorb international legal obligations with varying levels
of automaticity.
- The judiciary can be influenced by foreign judicial interpretations that effectively
import international legal interpretations into domestic law.
- Compliance
- Compliance refers to behaviour that is or comes into relative conformity with prescribed
or proscribed behaviour.
- First-order compliance refers to compliance with the substantive provisions of a
rule.
- Second-order compliance refers to actions in accordance with the ruling of an
authoritative body charged with the interpretation or adjudication of a primary
rule (ICC, ICJ).
- Formal international mechanisms to enforce international law are notoriously weak.
- Self-reporting, volunteerism with respect to oversight, and the lack of follow up with
respect to the findings of treaty oversight bodies are often cited as key weaknesses.
- Effectiveness
- Sometimes international treaties do not achieve their goals, even if all actors are in
substantial compliance.
- International law is subject to many of the problems of unanticipated (or undesired)
consequences found in other regulated polities.
- Even if they comply, actors sometimes substitute one undesirable behaviour for
the banned or regulated activity.
- One consequence of the Convention Against Torture has been for
government agents to use horrific forms of physical and psychological
coercion that do not involve permanent bodily harm.
, Notes – International Law and Human Rights 2024
Lecture 02: 12/04/2024
International law and international relations theory
Bin Laden
- Connection to international law:
- Militaries must comply with international law.
- Denial of quarter (killing someone that is unable to fight/ is willing to surrender) is unlawful.
- Bin Laden would have been protected under the Geneva Convention if wounded.
- Could the USA kill bin Laden if he wanted to surrender?
- The USA did not want to capture him alive; did the USA give a kill order? or imply it?
- Sending troops to Pakistan in violation of Pakistani sovereignty = violation of international law.
- Indiscriminate attacks:
- Attacks that are expected to cause incidental loss of civilian life, injury to civilians which
would be excessive.
- E.g. attacks by bombardment.
- The USA took custody of his body:
- The dead should be honourably buried, according to religions and in ways the body can
always be found.
- Sea burial on aircraft carrier with religious considerations (against Islam).
- US lawyers discussed situations in which it might be lawful to shoot bin Laden even if he is trying
surrender.
- The biggest employer for international lawyers is probably the military.
The killing of bin Laden and international law
- Functions of law:
- Constraint of force
- Legitimiser of force (who can you kill?)
- Enabler of force
- Fig leaf (law does not really matter – the US would have killed bin Laden no matter what)
- Mutually constitutive (law does something to politics and vice versa)
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